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Does an Employee have a Right to Privacy in Non-Business Text Messages Sent or Received on Leased City Pagers? Part II

In my last post, Does an Employee have a Right to Privacy in Non-Business Text Messages Sent or Received on Leased City Pagers? Part I, I introduced a US District court case concerning non-business related text messages sent and received on leased city pagers and whether or not these private messages could be read by supervisory city employees. In this post I would like to discuss the outcome of the district case and give you an update on the pending court of appeals case.
The district court held that Arch Wireless did not violate the SCA and that it had the right to release the message transcripts to the city. It further held that the plaintiffs had an expectation of privacy in their private communications, but that because of the Lieutenant’s informal policy on not auditing messages if the user paid for overcharges for texting, it was a jury question as to whether the Lieutenant’s audit of the transcripts was with the intent of determining the efficacy of the 25,000 character limit, or with the intent of investigating misconduct, since some of the messages were sexual in nature and also could be considered a waste of the city’s time. If the Lieutenant’s intent was the former, then the “search” was reasonable, but if the intent was the latter, the search was unreasonable as a matter of law. The jury agreed that the intent was to determine efficacy of the character limit, thus absolving all of the defendant’s of any liability.
On appeal, the court of appeals held that the employees did have an expectation of privacy concerning their private text messages; that Arch Wireless had no authority to turn over the transcripts to the city, and that the search of plaintiffs’ messages constituted a violation of the 4th Amendment to the U.S. Constitution and California privacy rights. The court therefore reversed and remanded to the U.S. District Court for a determination of plaintiffs’ claims against Arch Wireless and the city defendants.
On December 9, 2009, the U.S. Supreme Court granted certiorari (agreed to hear an appeal) of the case. I will continue to follow the case and report the final decision.